A recent GAO decision addresses two important issues. Will GAO review terminations where an agency terminates a contract in response to a successful agency protest by another contractor? And, will GAO review a protest alleging an agency failed to give the contractor the required debriefing? The answer to the first question is yes and the answer to the second is no. AutoFlex, Inc., B-415926, April 19, 2018.
AutoFlex argued the agency unreasonably terminated the contract it had been awarded and in turn awarded the contract to another contractor. The agency took corrective action as a result of an agency level protest. GAO denied the protest on the merits, but GAO reiterated the rule that such actions may be challenged in a protest.
GAO stated that it generally will decline to review termination of contracts because such actions are a matter of contract administration. However, GAO will review terminations if they result from a defect in the award process. In such cases, GAO will review the protest to see if the initial award was improper. If so, GAO will scrutinize whether the corrective action taken was appropriate to "protect the integrity of the competitive procurement system." GAO most likely will defer to the agency if there were in fact flaws in the initial award. However, the corrective action must be an appropriate remedy for the improper award.
The decision is a reminder that if a contractor receives an award but finds its contract terminated, the contractor may seek relief at GAO by challenging the propriety of the corrective action.
The same decision reminds us that there just is no remedy if the agency fails to provide a required debriefing. GAO considers debriefings "procedural" matters that do not involve the validity of an award and therefore beyond GAO's jurisdiction. Not good. There needs to be some teeth in the debriefing requirement.
bill@spriggsconsultingservices.com
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